SFAAP legislation working way through Congress
Moore, governor not notified of measure
Federal legislation that could alter the way the Sunflower Army Ammunition Plant is transferred to the Kansas City, Mo., real estate company, Kessinger/Hunter and Co. has made its way through the U.S. Senate and House.
The legislation would allow the Army to convey the plant directly to "an entity selected" by the Johnson County Commission. That would be a departure from the arrangement the county has been attempting to put together for the last year. Since June 2003, the county has been negotiating the purchase of Sunflower with the hope of immediately reselling the property to a developer.
The County Commission designated the Kessinger/Hunter as the "potential developer" of Sunflower in January and approved a predevelopment agreement with the company July 1 that established the framework of future agreements.
Keith Yehle, legislative director for Sen. Pat Roberts, said the Sunflower measure was an amendment to an Armed Forces Authorization Bill, which annually sets policy and budget priorities for the military.
Sen. Elizabeth Dole, R-N.C. introduced the amendment for Roberts June 3 on the floor of the Senate.
The bill states: "The Secretary of the Army, in consultation with the Administrator of General Services, may convey to an entity selected by the Board of Commissioners of Johnson County, Kansas, all right, title and interest of the United States in and to" Sunflower.
The House had passed its own version of the authorization bill, Yehle said. Members of a joint conference committee would meet in the coming weeks to iron out differences, he said.
Johnson County Chief Legal Conselor Don Jarrett said the bill was a joint effort of the county, developer, the senator, the Army and GSA.
Johnson County commissioners John Toplikar and Doug Wood said they were informed of the amendment soon after its passage from the Senate.
Wood suggested to Jarrett the word "hereafter" be added to the legislation to make it clear the county had not yet designated Kessinger/Hunter as Sunflower's developer.
"We were informed to not bother to suggest any changes to the wording," he said. "The question in my mind was if it was an acknowledgement that we had already selected Kessinger/Hunter. What would happen if they withdrew their proposal, or we chose not to go ahead?
"We were assured by Kevin Yehle that the language is permissive and nothing is going to happpen without the approval of Board of County Commissioners."
Toplikar said in his view the Commission had already named Kessinger/Hunter the developer.
Wood said he was also told not to publicly discuss the measure.
"I was also told this was to be confidential and not to discuss it or get in a debate about it," he said.
Despite his concern the legislation could still be interpreted to say the county had already designated Kessinger/Hunter, Wood said he supported the legislation. The direct sale of the plant to Kessinger/Hunter as permitted in the bill would make the transfer of Sunflower "cleaner," Wood said.
"The advantage to the bill is the county doesn't have to act as the collection agency or paymaster to the cleanup," he said. "That would be done with the GSA (U.S. General Services Administration)."
It would also relieve the county from any responsibility for Sunflower's cleanup by removing it from the chain of title of Sunflower property, Wood said.
The big stick of public pressure would require Kessinger/Hunter to work through the county, Wood said.
"Although there isn't anything specifically in this law that says the developer isn't going to have to do what we say, the developer is going to have a hard time if they don't," he said. "Public pressure from the governor's office on down is not going to allow Kessinger/Hunter to go forward in a manner the county doesn't approve of."
Sen. Roberts' office said the amendment was presented on the floor of the Senate in an open manner and there was nothing secret about the process.
The introduction of the legislation was the latest example of the lack of transparency involving the Sunflower transfer, said Micheline Burger, president of Taxpayers Opposed to Oz Inc.
"It is insufficient to say a public bill in the Senate is a matter of public record," she said. "That's like finding a needle in a haystack."
Her suspicions raised by the recent predevelopment agreement, Burger found the bill through an Internet search. She shared the news July 7 with the Sunflower Restoration Advisory Board.
Burger said she was concerned with a section in the amendment that states "notwithstanding any other provision of law" the secretary of the Army may enter into an agreement with the selected developer to "undertake environmental remediation and explosive cleanup of the property." The amendment adds the Army or the GSA could require additional conditions.
Under the federal early transfer legislation that guides facilities like Sunflower, Gov. Kathleen Sebelius would be required to sign a Finding of Suitability of Early Transfer as a prerequisite to the plant's transfer. Sebelius has informed the county and Kessinger/Hunter that her signature of the so-called FOSET was dependent on the developer setting aside a substantial portion of Sunflower for a life science research park.
Matt All, the governor's chief legal consul, said the governor learned of the amendment through Burger. Since that time, Roberts' office assured him in writing and on the phone that the amendment wouldn't remove the need for a FOSET. The motivation for the legislation was to remove Johnson County from any liability for the cleanup, he said.
Roberts and the governor shared the same goals for Sunflower, All said.
The bill is permissive and was meant as another way to deal with the envirnomental cleanup and its safeguards, Jarrett said.
"It was assumed by all the developer would still need the approval of the state and the county," he said.
Despite the many assurances, Burger said it was unclear whether the language wouldn't allow a transfer to Kessinger/Hunter outside of the FOSET process.
"My hope is there will be clarification and answers to these questions," she said. "There has to be pretty clear language that the rest of the laws in terms of environmental remediation and historical preservation are followed.
"I call on Sen. Roberts to address that either by changing the language in conference or a thorough definition of why the FOSET or historical requirements still apply."
Rep. Dennis Moore, whose 3rd District Congressional district includes Sunflower, was also unaware of the amendment before July 7.
Moore spokeswomen Christie Appelhanz said it was unusual that Moore's office wasn't informed of legislation on an important issue in his home district. Had Moore introduced legislation of something with as much interest as Sunflower, his office would have issued a press release, she said.
In response to the news, Moore wrote a July 8 letter to Roberts, citing three concerns any transfer legislation protect the state and county from liability. The Lenexa Democrat also expressed concern the amendment made no mention of proposed Sunflower public benefit transfers other than the 2,000 acres to Johnson County Parks and Recreation that the two lawmakers supported in a 2003 bill.
Finally, Moore asked why there was no public bid process for the property.